Is It Illegal to Sit on the Street and Watch Clouds Go By?

News that someone was getting a ticket for sitting on a chair playing the fiddle traveled fast up and down Telegraph. A reporter snapped pictures for the paper. A Channel Two news crew began filming. Officer Cole kept insisting that other people had no right to be on the sidewalk, either.

by Carol Denney

Berkeley’s last election featured a contest between anti-sitting-law proponents and those opposed to making the simple act of sitting down a crime. Measure S, the anti-sitting law, was defeated at the ballot in November 2012. It was considered a civil rights victory. But who really won?

It was the most expensive campaign in Berkeley history. The effort to outlaw sitting was funded by well-heeled real estate interests and supported by merchant associations, most of the Berkeley City Council, and the Chamber of Commerce.

Criminalizing the simple act of sitting down was described by otherwise intelligent people as a humane response to human need. Since living on the streets was so hard, better to make it illegal.

So, in the aftermath of our victory over the forces that attempted to outlaw sitting, can you sit on the street and watch a cloud go by? The results are still not in.

I worked on the campaign opposing the anti-sitting law. A large part of our work was simply educational. Misleading anti-sitting law materials in expensive, shiny colors were everywhere. But once people found out the extremity of the anti-sitting law, they generally opposed it.

Most people realized that the law would most probably be used against some people but not others. It’s hard to ignore the Cheeseboard pizza eaters sitting undisturbed by the “Don’t Sit on the Median” signs on Shattuck in North Berkeley.

Two days before the election, on Sunday, Nov. 4, 2012, I put poetry opposed to the anti-sitting law from poets all over the Bay Area up on the fence near the corner of Haste and Telegraph and sat down with some musicians to play.

We were trying to illustrate that simply sitting on a chair playing music — perfectly legal behavior under the law — would become a crime in two days if Measure S were to pass.

I got a ticket.

Artists were inside the fence perimeter touching up the mural facing Haste Street. People trickled by, enjoying a sunny day. We sat close to the fence, so there was seven feet of unobstructed nine-feet-wide sidewalk in front of each of us, more than enough space for two wheelchairs to pass without issue. Our instrument cases were beside or under us, out of the way.

A few people stopped and asked about the “This Is Legal” sign and its significance, but our demonstration was pretty unobtrusive until Berkeley Police Officer Heather Cole rode up on her bicycle. She accused us of obstructing an empty sidewalk, and since I had carefully researched both the ordinance and the best place on Telegraph to make sure to cause no hardship for merchants or passers-by, I found it pretty funny.

This wasn’t civil disobedience. This was carefully planned obedience to illustrate the absurd overreach of the anti-sitting proposal. I had checked the law, checked with attorneys, planned every aspect of the demonstration so that no one and no one’s instruments would be jeopardized.

Officer Cole continued to threaten us, arguing that we were in the way, despite there being no complaining party. The muralists were amazed.

News that someone was getting a ticket for sitting on a chair playing the fiddle traveled fast up and down Telegraph. A reporter snapped pictures for the local paper. A Channel Two news crew began filming.

Officer Cole kept insisting that other people had no right to be on the sidewalk, either. She moved a nearby plein air painter to the curbside and hassled a guy about 20 feet away collecting signatures.

I had heard about this police harassment from friends on the street and people who worked at the Homeless Action Center and the East Bay Community Law Center, but it never occurred to me that an obviously political demonstration would be targeted, especially with Channel Two News cameras running.

We kept playing. Officer Heather Cole kept shouting, “I’ll take you to jail if you don’t stop playing,” while we played “Soldier’s Joy,” a moment which made the news that night.

The Spirit of Telegraph Avenue mural in Berkeley now includes Carol Denney in its pictorial history of the counterculture that arose in People’s Park and Telegraph.

But it was turning into a strange scene. People were shouting at the cops. Two attorneys showed up who tried to explain to Officer Cole that she was misapplying the law. Cole’s supervisor showed up and argued with them. I finally said, fine, give me a ticket, hoping to get back to playing.

But our effort to illustrate legal behavior was in ruins. I still don’t know what Officer Cole’s problem was that day. Alameda County District Attorney Nancy O’Malley dropped the case against me after a couple of court dates.

I filed a complaint with the Police Review Commission which was not sustained. So the question remains: Can you sit on the sidewalk? The law is pretty clear about it, but no one else seems to be.

A couple of the police review commissioners asked questions which implied that someone could be accused of obstructing the space one occupies with one’s body, a patent absurdity which, if true, would put us all in jail.

You can’t accidentally block a sidewalk under Berkeley law, as written and clarified by former Police Chief Meisner’s memos. The law makes it clear that people can’t be accused of blocking a sidewalk for just being there, or for having a backpack or other personal items beside them.

But the police either don’t realize that or realize it and don’t care what the law actually says or what it was intended to do. The Police Review Commission, the Police Department, and the City Council all look the other way as people continue to get these absurd tickets which, at some point, if not addressed, turn into jail time and court costs for which the public picks up the bill.

My ticket cost me at least three days of work, about ten cumulative hours of police officers’ time, both in and out of court, court time for several pre-trial dates, and baffled a boatload of reporters, students, and Channel Two News watchers who are probably as confused as I am about why Berkeley would conduct the most expensive campaign in its history against sitting down if it is already against the law.

Is sitting down against the law? Maybe it depends on who you are. The Cheeseboard pizza-eaters obviously get a pass. Maybe it depends on whether or not you are demonstrating against something like Measure S, a kind of content-based provision. Or maybe Officer Heather Cole hates traditional old-time music, a kind of fiddle-based objection.

It’s an Alice in Wonderland world up there on Telegraph Avenue. The hookah-smoking caterpillar can’t figure it out, and neither can I. The muralists painted me into the mural after that day, for which, I suppose, I should thank Officer Cole.

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